Bangalore District Court
Prasanna Kumar C vs M/S.Jatti Automobiles on 3 February, 2015
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 3rd day of February 2015.
Present: Sri. K.M.Radhakrishna, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No.9469/2012
Complainant: Prasanna Kumar C,
S/o. Chinnappa S
Aged about 44 years,
R/at No.11/1, Ravi Krupa,
3rd Cross, K.N.Extension,
Yeshwanthapura, Bengaluru-22.
(By Sri.Ramesh Babu, Adv.)
- Vs -
Accused: M/s.Jatti Automobiles,
No.51, Pattandur Agrahara,
Outer Circle, Whitefield,
Bengaluru-66.
Rep. by its Proprietor
D.B.Jatti.
(By Sri.Nagendra Prasad B.M.,
Adv.)
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2 CC No.9469/20122. The facts of the complaint in brief are that, the accused is known to the complainant. The accused is the proprietor of M/s.Jatti Automobiles. On the offer of the accused to pay the interest @ 18.33% p.a., the complainant has deposited a sum of Rs.2,50,000/- with him. The accused has paid the interest on the deposited amount till January 2009 and failed to pay the interest thereafter. When the complainant has demanded for payment of the accrued interest and principal amount, the accused has issued a cheque bearing No.538890 dated 15.11.2011 for Rs.2,50,000/- drawn on Bank of Baroda, Palace Orchards Branch, Bengaluru in favour of the complainant to repay the amount. As per the assurance of the accused, the complainant has presented the cheque to the bank for encashment. It was returned dishonoured with a shara "opening balance insufficient" dated 17.11.2011. Thereafter, the complainant has served the legal notice dated 24.11.2011 to the accused on 25.11.2011. On receipt of the demand notice, the accused failed to pay the cheque amount and has committed an offence punishable u/s 138 of the Negotiable Instruments Act.
3. Wherefore, it is prayed to punish the accused in accordance with law and impose the fine under Sec.357 of Cr.PC to meet the ends of justice.
4. After taking cognizance and registration of the case, process were ordered against the accused. On receipt of the same, the accused has put his appearance through an Advocate and got enlarged on bail. The accusation was recorded against the accused and read over in the language known to him. He pleaded not guilty and claims to be tried.
3 CC No.9469/20125. To prove the case, the complainant has been examined as PW.1 and got marked documents as Ex.P.1 to Ex.P.6. After the evidence, the statement under Sec.313 of Cr.PC is recorded, read over and explained the same to the accused. He denies the incriminating evidence appearing against him. Per contra, the accused has been examined as DW.1 and got marked one document as Ex.D.1.
6. Heard arguments.
7. Points for consideration are;
1. Whether the accused proves that, the cheque in question (Ex.P.1) was not issued by him in favour of the complainant towards the discharge of legally enforceable debt ?
2. Whether the complainant proves that, the accused has committed the offence punishable under Sec.138 of the Negotiable Instruments Act ?
3. What order ?
8. My answer to the above points are;
Point No.1 : Negative,
Point No.2 : Affirmative,
Point No.3 : As per the final order for the
following;
REASONS
9. POINT NOS.1 & 2: In the examination-in-chief, PW.1
has reiterated the complaint averments. The cheque Ex.P.1 for Rs.2,50,000/- is the subject matter of this case. To establish the 4 CC No.9469/2012 compliance of Sec.138 (a) to (c) of the Negotiable Instruments Act, PW.1 has produced the bank endorsement Ex.P.2, the legal notice Ex.P.3 and the postal acknowledgement Ex.P.5 contending that, the accused failed to pay the cheque amount even after service of demand notice on the dishonour of the cheque with a shara "opening balance insufficient".
10. The admitted facts in this case are that, the accused is the businessman and the proprietor of M/s.Jatti Automobiles, M/s.Jatti Engineering India Pvt. Ltd., M/s.Jatti Motors, M/s.Jatti Ranch, M/s.Jatti Project Inc., M/s.Jatti Foundation etc. As per the letter of the accused Ex.D.3 dated 15.7.2009 with it's annexure Ex.P.8 marked in C.C.No.9468/12 and the cross- examination of DW.1 herein, the complainant, his father S.Chinnappa, sister C.Gayathri Devi, his wife R.Anitha, brother- in-law M.Narayanaswamy and others have deposited a total sum of Rs.36,50,000/- with the accused during the period from 2005 to 2008. It is also not in dispute that, the accused has issued number of cheques and receipts to the complainant and his family members on such deposits for security. The cash receipts Ex.P.9 to Ex.P.14 marked in C.C.No.9468/12 are evident for it. The accused has paid total interest of Rs.18,41,118/- till the end of January 2009 to the complainant and his family members on such deposits as could be seen in the letter Ex.D.3 dated 15.7.2009 marked in C.C.No.9468/12.
11. In the case on hand, PW.1 claims to have deposited Rs.2,50,000/- in question with the accused under the receipt Ex.P.10 dated 27.10.2005 marked in C.C.No.9468/12 on the alleged assurance of the accused to pay interest at 18.33% p.a. 5 CC No.9469/2012 Here, admittedly there was no written agreement with regard to the payment of interest. But the payment of Rs.18,41,118/- as interest by the accused as referred above to the complainant and his family members is a substantial piece of evidence to believe the contention of PW.1. Therefore, there are no reasons to follow the denial of the accused with regard to the payment of interest and assurance therefor as asserted by the complainant.
12. The accused has took a defence that, the amount of Rs.2,50,000/ in question was deposited by the father of the complainant S.Chinnappa and there was no transaction of any kind with the complainant. But there is no material to support the defence of the accused as such. Because, admittedly the receipt Ex.P.10 dated 27.10.2005 marked in C.C.No.9468/12 is in the name of the complainant herein issued by the accused at the time of receiving the deposit. DW.1 has not explained the necessity of issuing the receipt in the name of the complainant if really his father has deposited the amount. Therefore, I find no reason in the contention of the accused on this count, but to hold that, it is the amount, which was deposited by the complainant herein.
13. PW.1 asserts the failure of the accused to pay interest after January 2009 on the deposited amount and issuance of the cheque Ex.P.1 for Rs.2,50,000/- on demand for return of the principal amount in question in the year 2011. Here, it is expedient to indicate that, as the instant case and the case in C.C.No.9467/12 filed by the complainant, his family members i.e., his father, wife, sister and brother-in-law respectively have 6 CC No.9469/2012 filed similar cases against the accused on the file of this Court (all cases are reserved for judgment) as hereunder:
S.Chinnappa C.C.No.9468/12 & Rs.2,50,000/- & C.C.No.9471/12 Rs.3,00,000/-
R.Anitha C.C.No.9470/12 Rs.2,50,000/-
C.Gayathri Devi C.C.No.16149/12 Rs.3,00,000/-
M.Narayanaswamy C.C.No.16150/12 Rs.3,00,000/-
14. PW.1 states that, the amount of Rs.36,50,000/- was deposited by him and his family members with the accused out of the compensation paid by BDA in relation to the acquisition of their land. This is not in specific dispute. The receipt of deposits by the accused without questioning the source is quite evident.
Therefore, DW.1 has no reason to question the source and capacity of the complainant. In view of the above admitted facts and in the light of the discussions in the foregoing paragraphs, the defence raised by DW.1 as if the amount in question is unaccounted and undisclosed etc., does not survive for consideration. The accused has relied on the following authorities in support of his defence. (2014) Supreme (SC) 53053 - Ramdas Vs Krishnanand.
Held - the complainant being an employee of the accused having annual savings of Rs.10,000/- claiming to have given loan of Rs.5,00,000/- to the accused failed to explain the source of fund - Claim not sustainable."
2009 Cri.L.J. 3777 (Bombay) - Sanjay Mishra Vs Ms. Kanishka Kapoor @ Nikki and another.
Held - Sec.138 and 139 of N.I.Act - Cheque dishonoured - the complainant failed to disclose huge amount allegedly advanced in the I.T. return or books of accounts is sufficient to rebut the presumption.
7 CC No.9469/2012Also referred • 1998 Cri.L.J.906 (AP) - A.Bhoosanrao Vs Purushothamdas Pantani and another.
Based on the above observations and admitted facts, the principles in the aforesaid authorities relied on by the accused cannot be made applicable to the present facts of the case.
15. The specific defence of the accused in this case is that, no demand notice on the dishonour of the cheque was served on him. He has issued a signed blank undated cheque in the year 2005 as found in the xerox copy thereof at Ex.D.1 to the father of the complainant as a security to the amount deposited. There is no existing legal liability on his part to discharge under Ex.P.1 as if it was issued for security purpose.
16. Ex.P.5 is the postal acknowledgement under which PW.1 claims to have served the legal notice Ex.P.3 to the accused. Wherein, the office address of Jatti Automobiles is shown at No.51, Pattandoor Agrahara, Bengaluru-66. The accused denies his office at the said address stating that, it is at No.225, Bellary Road, Bengaluru. In contra, DW.1 has admitted in the cross-examination that, the office address of his automobile is shown at No.51, Pattandoor Agrahara, Bengaluru-66 in the criminal petition No.2422/12 filed by him and Civil Misc. No.187/13 on the file of the Hon'ble High Court. This admission and documentary evidence itself is sufficient to accept the arguments of the counsel for the complainant that, the accused is in the habit of showing his automobile office in both the addresses to his convenient. Admittedly, M/s.Jatti Engineering India Pvt. Ltd., is at the address found at Ex.P.5. DW.1 describes it as a construction site. It is true that, Ex.P.5 8 CC No.9469/2012 does not bear the signature of the accused. On this ground, he is disputing the service of notice. But the counsel for the complainant contends that, the demand notice was received by the office of the accused on his behalf in the given address. As already cited above, the accused is the proprietor of number of firms and carrying his business with the help of his assistants and managers. Therefore, his continuous presence in the given address and service of notice personally to him cannot always be expected as rightly pointed out. Even for the sake of discussion, if the contention of the accused that, the office of his automobile is believed to be at No.225, Bellary Road, Bengaluru, the given address in Ex.P.5 is the address of M/s.Jatti Engineering India Pvt. Ltd., belongs to him. It is not his defence that, none of his assistants or managers have received the demand notice on his behalf. Therefore, it has to be inferred that, the signature found at Ex.P.5 should have been the signature of his concerned assistant as rightly pointed out by the complainant's counsel. Even otherwise, the principles laid down in the authority 2012 (4) AIR Kar.R 119 in the case of Prakash @ Gnanaprakash Vs T.S.Susheela relied on by the complainant that, "Dishonour of cheque under Sec.138 - The purpose of sending the notice by registered post is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of notice and thereby free himself from penal consequences. Likewise, it is open for the accused to make payment within 15 days from the date of receipt of summons from the Court and resolve himself of any criminal liability."
are sufficient to ruled out the contention of the accused with regard to non-service of notice. Therefore, I hold that, the notice was duly served to the accused.
9 CC No.9469/201217. So far, issuance of the signed blank undated cheque in the year 2005 as contended by the accused is contradicted by him in the form of producing the xerox copy thereof at Ex.D.1. It indicates the payee name, amount details with signature written on the cheque except the date column leaving blank. If really, he had issued a signed blank cheque to the father of the complainant, the contents of the cheque Ex.P.1 i.e., the name of the complainant as payee, the amount details would not have been found in the xerox copy at Ex.D.1. That apart, the name of the complainant written on the cheque as payee, the amount details etc., is not denied by the accused. It is quite sufficient to ruled out the contention of DW.1 that, he has issued a signed blank undated cheque to the father of the complainant. Thus, it is obvious that, the accused apart from giving the receipt Ex.P.10, has given a filled up undated cheque to the complainant at the time of receiving the deposit in the year 2005. The admission of the father of the complainant during the cross- examination dated 22.1.2015 in C.C.No.9468/12 that, "he used to deposit the amount with the accused and was taking receipt along with undated security cheque against each deposit". Similarly, the admission of PW.1 in C.C.No.16149/12 that, "it is true that, prior to the issuance of the letter dated 15.7.2009 (Ex.D.3 in C.C.No.9468/12) by the accused, the cheque Ex.P.1 was in the possession of my father" are sufficient to say that, the cheque Ex.P.1 should have been issued in the year 2005 by the accused to the complainant at the time of receiving the deposit of Rs.2,50,000/-.
18. Arguing on merits, the counsel for the complainant has contended that, the accused while giving a filled up undated cheque has given an implied authority to the complainant to fill 10 CC No.9469/2012 the date column at his choice and it has to be deemed that, the cheque has been issued by the accused with effect from 15.11.2011 filled up by the complainant thereon as enumerated under Sec.20 of the Negotiable Instruments Act. This contention has been opposed by the accused stating that, the day on which, the undated cheque was given by him is to be deemed to have been issued in the year 2005. Here, I find no reason to go with the contention of the accused. Because, his intention in giving filled up undated cheque itself not only indicates the security for the amount deposited, but also prima facie authority to the complainant to make use of it by filling the date so as to get refund the amount by way of encashment on the due date at the option of the complainant. Therefore, the contention of DW.1 that, the cheque was given for security purpose is not a ground to take the defence as such.
19. The defence counsel has argued that, the complainant cannot use the undated cheque as a threat against the accused as it was given for security purpose. Also relied on the authority 1995 Cri.L.J.560 (AP) in the case of Taher N Khambati Vs M/s.Vinayak Enterprises, Secunderabad and others.
"Held - obtaining of signed blank cheque by the creditor from the debtors at the time of advancing certain sum with a view to make use of it as a threat for realisation of the amount cannot be said to be issued voluntarily for discharge of debt or legal liability."
For my above observations in the light of the factual circumstances, I hold with due respect that, the aforesaid principles are not applicable to the present facts of the case.
11 CC No.9469/201220. No doubt, PW.1 has relied on the authority 1 (2010) BC 362 (Kar.) in the case of Kuthar Ahammed Bhava Vs S.K.District Co-operative Fish Marketing Federation Ltd., asserting the liability of the accused under the cheque Ex.P.1 to discharge. The principles held therein are:
"Issuance of the cheque towards payment of debt - once the debt or liability is proved, then the presumption has to raise that, it was issued towards the payment of debt or liability."
These principles can be made applicable to the case of the complainant. Because, the existing liability to discharge by the accused and issuance of the cheque stands proved by the evidence on record. Under these circumstances, mere sending a letter dated 15.7.2009 Ex.D.3 marked in C.C.No.9468/12 to the father of the complainant would not be a ground to the accused to take a negative defence under it's shadow. Thus, I am of the view that, the principles in the authorities Crl.A.No.518/2006 in the case of Krishna Janardhan Bhat Vs Dattatreya G Hegde and ILR 2009 Kar. 172 in the case of A.Vishwanath Pai Vs Vivekananda S Bhat relied on by the accused has no application as the existing of legal liability and issuance of the cheque is proved. The evidence indicates the compliance of Sec.138 (a) to
(c) of the Negotiable Instruments Act by the complainant and his entitlement for the presumption under Sec.139. In this way, the accused failed to rebut it. Therefore, I find no hesitation to hold that, the offence against the accused stands proved. With this conclusion, I answer point No.1 in the negative and point No.2 in the affirmative.
12 CC No.9469/201219. Point No.3: Keeping in view the nature of the transaction, it's age, facts and circumstances in the light of my findings on point Nos.1 & 2, I pass the following;
ORDER
Acting under Sec.255(2) of Cr.PC, the
accused D.B.Jatti S/o. Basappa Danappa Jatti is convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced him to pay a fine of Rs.4,00,000/- (Rupees Four Lakh only).
In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of three months.
It is further ordered that, out of the fine amount, a sum of Rs.3,80,000/- (Rupees Three Lakh Eighty Thousand only) shall be paid to the complainant as compensation under Sec.357 of Cr.PC.
The bail bonds of the accused shall stands cancelled forthwith.
Office is directed to supply a free copy of the judgment to the accused.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 3rd day of February 2015).
(K.M.Radhakrishna) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
13 CC No.9469/2012ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Prasanna Kumar C List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque. Ex.P.1(a) Signature of the accused. Ex.P.2 Bank Endorsement. Ex.P.3 Copy of the legal notice issued to the accused. Ex.P.4 Postal receipt. Ex.P.5 Postal acknowledgement. Ex.P.6 Complaint.
List of witnesses examined on behalf of the accused :
DW.1 D.B.Jatti List of documents exhibited on behalf of the accused :
Ex.D.1 Copy of the signed blank undated cheque.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.